May v. Logie

am of opinion that this appeal must be dismissed. In the first place the appellant failed to give proper evidence establishing the title of the persons under whom he claims as heirs at law of William Pidgen, deceased.

The only proof of the relationship of the persons who were the grantors in the alleged conveyance of the 20th June, 1894, to y Walter J. Kilner, to be found in the record, is that contained in the deposition of the witness William Pidgen. This young man who was only twenty years Justice. old when he left England in 1890, assumes to give the history of his father's family; but he discloses in his evidence that what he knew of it he only learned from other persons, in other words, that his evidence was mere hearsay consisting of statements which his father, who was still living, had made to him. Thus for instance, on re-examination by the counsel for the plaintiff, he is asked " Is it possible that one of the brothers or sisters named by my learned friend, left any children ?" And this question being objected to, the following evidence is given.

? ? This, as the respondent in his factum insists, is of course not the proper way to prove pedigree which includes heirship or descent.

In such cases it is true that hearsay evidence of a peculiar kind is admissible, but this is limited to declarations made by a person who is proved, by evidence aliunde his own statements, to be a relation of the parties of whose existence or death he spoke, and who is himself deceased, for nothing can be better established than that such declarant, if living, must himself be called as a witness, and that his declarations are in that case inadmissible. There could be no possible difficulty in examining Thomas Pidgen, the father of the witness, in England, under a commission before which, in the present state of the law, he might have been compelled by process to appear. This principle of the law of evidence is so elementary that it scarcely requires any reference to authority. Taylor (1) and G-reenleaf may, however, be referred to as stating this rule evidence which prevails in America as well as in England.

Another defect in the proof of descent is this. When William Pidgen died in 1878 the law of Ontario on the subject of the descent of real property was regulated by the Act of 1852, and under that Act, William Pidgen having died without issue, his heir at law was his father, if living.

The age of William Pidgen is nowhere stated, and even if it were, we cannot presume that his father died before him. There is, therefore, really nothing to shew that the persons. mentioned in the deposition of the witness William Pidgen, ever had any interest whatever in these lands. The respondent has taken the objection to the sufficiency of the proof of heirship upon the first point very precisely in his factum, and I can see no answer to it. It constitutes therefore, by itself, a sufficient answer to this appeal and as such must prevail.

I think for several reasons the defendant was entitled to be informed who the party in interest, represented in the somewhat unusual transactions respecting this property by such men of straw as Kilner and May, really was. The defendant was entitled to know with whom he was really and actually contending, in order that he might be able in future to protect himself from further litigation by the parties having the beneficial interest.

He was also entitled to know the terms of the trust under which Kilner held the land in order that he might be assured that the conveyance from Kilner to May was not in breach of trust, for if it were such, and so not binding on the beneficiary, a judgment in this action either way would not be conclusive on the cestui que trust, and not being conclusive, would leave the defendant exposed to future litigation by the beneficial owner.

Then for another reason evidence which was rejected ought to have been received. The acquisition of this land under the purchase from the alleged heirs at law was a very exceptional, not to say a suspicious, transaction, which in my opinion the defendant was entitled to have thoroughly probed on cross-examination, by way of testing the sufficiency of the plaintiff's proof of title, if for no other reason.

Aside from this, however, altogether, there was on the record a defence distinctly pleaded setting up the illegality of the transfer of title from Kilner to May, by reason of champerty or maintenance.

I am not at all sure that, as it is, on the evidence of Kilner and May taken in conjunction with that of Merritt A. Brown, this defence was not established, but I do not proceed on that ground, in dismissing the appeal.

I am, however, clear that the defendant was entitled to have answers to many of the questions which were put by his counsel which were overruled.

The appeal must be dismissed with costs.

Appeal dismissed with costs.